The EPA and ACE have changed the Clean Water Act’s definition for “waters of the United States.” Though traditionally limited to navigable waters, and adjacent waters, this new definition would classify lands as waters of the United States if—at any point during the year—they have any water overflow. The new rule would bring seasonal streams, ponds, ditches, and depressions in fields into the CWA’s jurisdiction.
If EPA and ACE assert jurisdiction over your land, it will be essentially impossible—or at least tremendously expensive—to do anything with your land. This means you will not be allowed to alter land formations, which prevents landowners from digging or excavating on their properties, or even laying gravel. While it is possible to obtain a special permit to begin using portions of land covered by the CWA, these permits are extremely expensive. CWA permits can cost tens of thousands of dollars; if not more—a major U.S. Supreme Court case from 2006 cited the average cost at $270,000. There are inevitably long waits for permit processing, and there is no guarantee your permit will be approved.
The penalties for violations of the Clean Water Act can be up to $37,500 per day.
Does EPA and ACE have the authority to make these changes?
When Congress passed the Clean Water Act in 1972, it made clear that the CWA protects “waters of the United States.” The courts have understood this to mean traditionally navigable waters, but the precise reach of CWA jurisdiction is a point of controversy. The Supreme Court has taken the issue up three times, and it still remains a murky question. But what is clear is that EPA and ACE cannot expand their jurisdiction beyond what the limitations the Supreme Court has recognized in those cases. Accordingly, NFIB takes issue with the jurisdictional expansion here because EPA and Army Corp are seeking to expand CWA jurisdiction beyond what the Supreme Court has allowed in the past—and in contravention of a 2006 Supreme Court decision.
Did the agencies adequately consider the impact of this change on my small business?
Regrettably, they did not meet this obligation legally required by the Regulatory Flexibility Act. EPA is alleging that since this is a simple definition change, there are no major costs directly imposed on small businesses. There will certainly be costs directly imposed on small businesses through the permit process and other compliance requirements. In addition, the rule makes it clear that many waters will need to be determined on a case-by-case basis, therefore providing little, if any, additional certainty.
The agencies say that most farms are exempted by the rule. Does this rule affect my farm?
It absolutely does. There are some exemptions from the CWA’s dredge and fill requirements for prior converted cropland. However, many types of farming activities would still trigger compliance. For example, the use of pesticides on a field newly-defined as a water of the U.S. could be subject to regulation.